Allow me to start with an unusual admission: I agree with President Obama: "Elections have consequences." That is the extent of our agreement, because in the president's mind, the only election of consequence was his reelection in 2012. The 2014 election — an election that gave Republicans a historic majority in the House and their first Senate majority since 2006 — is trivial. In fact, Obama treats Congress, and the Senate in particular, as trivial institutions that only serve to slow down the fundamental changes he desires.
At the risk of overemphasizing the point, the Constitution does not prescribe how the Senate implements its "Advice and Consent" authority. It simply makes clear that while the president may nominate anyone he chooses, the Senate has the final say. Throughout the court's history, 24 nominees have not been confirmed — and nearly half of those denials have come in the last year of a president's term.
By now, we've all heard that Justice Anthony Kennedy was confirmed in 1988, the last year of President Reagan's second term. What Obama conveniently left out of his Rose Garden speech yesterday was that Kennedy was nominated in 1987 to confirm a vacancy that remained open after Senate Democrats torpedoed Robert Bork's nomination earlier that year.
Obama nominated Judge Merrick Garland in March of an election year. The situations are in no way analogous. To find a similar situation one needs to go back to 1916, a century ago, when President Woodrow Wilson nominated Louis Brandeis in January of that year. Brandeis was ultimately confirmed by the Senate on June 1, 1916. Put another way, it has literally been a century since a nominee was nominated and confirmed this close to a presidential election.
Of course, elections do indeed have consequences, and the Senate that confirmed Brandeis that year was controlled by Democrats. In 2008, Americans delivered a decisive Senate majority for Democrats, a majority they used to push two radical judges through the confirmation process and on to the Supreme Court. At the time, of course, Sonia Sotomayor was touted as a "mainstream Federal judge" and we were promised that Elena Kagan would "base her approach to deciding cases on the law and the Constitution, not politics or an ideological agenda."
Surprising no one but the most gullible and naive, Sotomayor and Kagan have done their absolute best to pull the Supreme Court decisively to the left. And it should come as no surprise that Senate Republicans are using their majority — a majority given to them by voters in 2014, two years after Obama's reelection — to serve as a much-needed check on the process.
Obama's promise that Garland will "recognize the limits of the judiciary's role" with "a commitment to impartial justice rather than any particular ideology" is laughable given the records compiled by Sotomayor and Kagan.
Prior to the nomination, liberal groups eagerly suggested that "Garland would side with the Supreme Court's liberal bloc in divided cases." If that is true — and there is no reason to doubt the left's sincerity in this instance — Garland's confirmation would shift the court radically to the left. Cases previously decided by a narrow 5-4 conservative majority would go the other way. The implications are real.
For example, a Supreme Court with Garland would very likely overturn Gonzales v. Carhart (2007), which upheld a federal law prohibiting partial-birth abortions. The court's four liberal justices at the time — John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — opposed the law, writing that the "notion that [banning partial-birth abortions] furthers any legitimate governmental interest is, quite simply, irrational." A liberal majority of Ginsburg, Breyer, Sotomayor, Kagan and Garland would no doubt agree, thus in effect creating a constitutional right to partial-birth abortion.
At the same time the new liberal majority is creating new constitutional rights, it would actively seek to strip away rights that are embedded in the Constitution itself. District of Columbia v. Heller (2008), which found the Second Amendment right to keep and bear arms does in fact apply to individuals, would very likely be overturned. Though Garland did not weigh in on the substance of the case as it moved through the D.C. Circuit Court, his vote to re-hear the case suggests he disagreed with the lower court ruling that ultimately prevailed.
A Republican-controlled Senate exists precisely to block this type of nomination. Senate Republicans deserve credit for using their "Advice and Consent" authority to ensure the American people's voices are not ignored as they are in the process of selecting their next president. If the American people truly want another radical liberal on the Supreme Court, they have the ability to deliver a similar mandate like they did in 2008. That is their choice, but it is a choice they should be allowed to make and one that will still require the U.S. Senate to exercise its constitutional prerogatives.
Needham is the CEO of Heritage Action for America.